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S was a Romanian national who had come to the UK in October 2013 in order to find work. He worked on and off, in various jobs (sometimes employed, sometimes self-employed), between October 2013 and around September 2015. S initially lived in the North East, but in Jul 2014 he moved South and obtained rented accommodation in Ilford.

In September 2015, while on holiday in Romania, S was involved in a very serious road accident which called his ability to work into question. He returned to the UK in February 2016 with his mother. S was unable to return to his previous accommodation and so he and his mother spent several months living with friends before applying to the London Borough of Waltham Forest as homeless in August 2016. In due course Waltham Forest issued a decision finding that S was not eligible for homelessness assistance within the meaning of s185 Housing Act 1996.

In November 2016, S and his mother moved to the London Borough of Brent and, around one month later, sought to make a further homelessness application, this time to Brent. As part of this application, the adverse decision letter from Waltham Forest was provided to Brent. Nevertheless, Brent accepted that S was eligible for assistance, found him to be owed the main housing duty but then sought to refer S’s case back to Waltham Forest pursuant to the local connection provisions contained in ss198-200 Housing Act 1996.

Waltham Forest refused Brent’s referral and made written representations to Brent to the effect that S was not eligible for homelessness assistance. This then prompted Brent to revisit their earlier decision, and write to S revising that decision and informing him that he was not in fact eligible for assistance. In subsequent correspondence Brent maintained the position that they were entitled to revisit this decision as it had ‘resulted from a fundamental mistake of fact’.

S sought judicial review of Brent’s decision. Sir Wyn Williams allowed the claim and the Court of Appeal dismissed an appeal against his decision.

As a general rule, ‘once a public authority exercising a statutory power has decided how the power is to be exercised, it will lack further authority and be functus officio [and] any later attempt to remake the decision will be outside the authority’s powers (ultra vires)’. The purpose of this general rule is the ‘strong and obvious public policy interest in finality, which allows individuals to rely on statutory decisions without having to worry that they may later be changed’. The general rule is subject to three exceptions. A decision may be revisited where:

there has been fraud (R v LB Southwark ex p Dagou(1995) 28 HLR 72);

there has been a fundamental mistake of fact (Porteous v West Dorset DC(2004) HLR 30);

or where the decision was not a final one, the public authority having not yet completed their inquiries (Crawley Borough Council v B(2000) 32 HLR 636).

Brent sought to argue that the case fell within the third of these exceptions and that a final decision had not yet been made as to the duty owed, as the decision on the referral remained outstanding. The Court of Appeal rejected this argument. The statutory scheme under Housing Act 1996, Part 7 separates the questions of eligibility and local connection. A local connection referral can only be made under s198(1) Housing Act 1996 where a final decision had been made that the applicant was owed the s193(2) Housing Act 1996 duty: ‘from that point onwards, the only question is which authority is to be responsible for discharging the duty.’